Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting today, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to this symposium.
Professor Chesterman explores the reasons for the relative under-participation and under-representation of Asian states as a group (what he refers to as Asia) in international lawmaking and in international institutions. Chesterman acknowledges the difficulty in referring to Asia as a group, due to the diversity of the continent. “Indeed,” he adds, “the very concept of ‘Asia’ derives from a term used in Ancient Greece rather than any indigenous political or historic roots.” Diversity is not only cultural or political, but also grounded in different interests, especially given the “great power interests of China, India and Japan” and perhaps also Russia, another crucial Asian player.
Chesterman notes as perhaps another factor for Asian skepticism of international law the previous negative experiences with international law that was used to justify colonial rule and to impose or victors’ justice and Western standards. It is an interesting and ultimately indeterminable question whether it is the history of Western dominated international law that continues to undermine the legitimacy of international law and institutions and suppress regional cooperation in Asia. Perhaps of greater weight are the internally-inflicted refutations and violations of international law by some Asian states in their dealings with other Asian states, which began with Japan’s invasions and occupations before and during World War II and continued by others in different parts of this vast and varied continent, and which are still festering. But arguably of more immediate concern are the contemporary challenges, both from the outside – the perception of Western capture of international law and its use, as Lauri Mälksoo notes, “as an hegemonic tool of the West,” and, again, by Asian countries challenging each other’s vision of international law.
Chesterman is aware of the need to have some common grounds to spark regional cooperation. Often the commonality would be an outside rival, such as the Soviet Union for Western Europe, or the US for Latin America. Asia has had the West as a formidable outside rival whose “divide and rule” strategy cleverly exploited the great disparities among Asian states which left little room for collective resistance. Another common ground that could spark regional cooperation has been internal, such as the shared need to bind future majorities to human rights standards, epitomized by the European move to secure regional protection of human rights. Most Asian states thought they could suppress domestic challenges without the aid of international institutions.